Citation Nr: 0620449
Decision Date: 07/14/06 Archive Date: 07/21/06
DOCKET NO. 04-38 863 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Buffalo,
New York
THE ISSUES
1. Entitlement to an increased rating for cervical
radiculopathy, C6-7, currently rated 20 percent disabling.
3. Entitlement to a total rating based on individual
unemployability (TDIU).
REPRESENTATION
Appellant represented by: Eastern Paralyzed Veterans
Association
ATTORNEY FOR THE BOARD
Heather M. Gogola, Associate Counsel
INTRODUCTION
The appellant had prior Army National Guard Reserve service
with periods of active duty for training (ACDUTRA).
This matter is before the Board of Veterans Appeals (Board)
on appeal from and October 2003 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Buffalo, New York.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
The RO granted service connection for the appellant's
cervical spine radiculopathy in July 2001 and assigned a
disability rating of 10 percent. The appellant submitted his
claim for an increased rating in February 2003.
The record shows that the veteran complains of pain,
weakness, tingling, numbness and decreased sensory of the
upper extremities. The record also shows that prior EMG
studies reveal evidence of radiculopathy. The RO granted a
separate 10 percent rating for left arm numbness, as
secondary to the service-connected cervical spine
radiculopathy. The RO assigned the 10 percent rating under
the 38 C.F.R. § 4.124, Diagnostic Code, 8515, paralysis of
the median nerve. Under this code a 10 percent rating is
assigned for mild incomplete paralysis. The record fails to
specifically identify the exact nerve(s) affected by the
veteran's service-connected cervical radiculopathy.
Additionally, the severity of any paralysis of the nerve is
also not specifically identified. Throughout the appeal, the
veteran asserts upper extremity impairment due to his
cervical spine disability which affects his ability to
function. In order to address the exact nature and severity
of the veteran's service-connected cervical radiculopathy,
the veteran should be scheduled for a VA examination.
In January 2004, the appellant submitted a claim for
entitlement to TDIU. A July 2004 rating decision denied the
appellant's claim for TDIU. In November 2004, the appellant
submitted a VA Form 9 in conjunction with his increased
rating appeal, which included a notice of disagreement with
the denial of his TDIU claim. The appellant has not been
issued a statement of the case with respect to this claim.
Since there has been an initial RO adjudication of the claim
and a notice of disagreement, the claimant is entitled to a
statement of the case, and the current lack of a statement of
the case is a procedural defect requiring remand. See
38 U.S.C.A. § 7105 (West 200); 38 C.F.R. § 20.200(2005); see
also Manlincon v. West, 12 Vet. App. 238 (1999).
During the pendency of this appeal, on March 3, 2006, the
United States Court of Appeals for Veterans Claims (Court)
issued a decision in the consolidated appeal of
Dingess/Hartman v. Nicholson, Nos. 01-1917, and 02-1506,
which held that the VCAA notice requirements of 38 U.S.C.A.
§ 5103(a) and; 38 C.F.R. § 3.159(b) apply to all five
elements of a service connection claim, including the degree
of disability and the effective date of an award. In the
present appeal, the appellant was not provided with adequate
notice under 38 C.F.R. § 3.159, specifically, he was not told
to submit all evidence he had in his possession which
pertains to the claim. He was also not provided with the
notice of the type of evidence necessary to establish an
effective date for the disability on appeal, in the event the
appeal is granted.
Accordingly, the case is REMANDED for the following action:
1. Send the veteran a notice consistent
with 38 C.F.R. § 5103(a) and 38 C.F.R.
§ 3.159(b)(1). The notice must do the
following:
(1) inform the claimant about the
information and evidence not of
record that is necessary to
substantiate the claim;
(2) inform the claimant about the
information and evidence that VA
will seek to provide;
(3) inform the claimant about the
information and evidence the
claimant is expected to provide; and
(4) request that the claimant
provide any evidence in the
claimant's possession that pertains
to the claim.
(5) include an explanation as to
the information or evidence needed
to establish an effective date for
the claim on appeal in the event
that an increased rating is
assigned. See Dingess/Hartman v.
Nicholson, Nos. 01-1917, and 02-1506
(U.S. Vet. App. Mar. 3, 2006).
2. The appellant should be afforded a VA
neurological examination to determine
the severity of the neurological
impairment due to the veteran's service-
connected cervical radiculopathy. Such
tests as the examining physician deems
necessary should be performed, to
include EMG testing/nerve conduction
studies, as well as complete range of
motion studies.. All findings should be
reported in detail. The examiner should
specifically address the following:
(a) Identify the nerve or nerves
that are affected by the veteran's
service-connected cervical
radiculopathy, C6-7 and discuss the
severity of the impairment caused by
the affected nerve(s). In this
regard, please state whether there is
any paralysis of the affected nerve,
and if so whether it is complete or
incomplete and whether such paralysis
is mild, moderate or severe.
(b) State whether the veteran's
service-connected cervical
radiculopathy, C6-7, causes
intervertebral disc syndrome, and if
so whether the veteran has
incapacitating episodes. If
incapacitating episodes are determined
to exist, the examiner should state
the total duration during the past 12
months. (The examiner should be
informed that an incapacitating
episode is a period of acute signs and
symptoms due to intervertebral disc
syndrome that requires bed rest
prescribed by a physician and
treatment by a physician).
The claims file should be made
available to and reviewed by the
examiner in connection with his
evaluation report.
3. After the foregoing, the AMC should
readjudicate the veteran's claim. If
the determination is adverse to the
veteran, he and his representative
should be provided a supplemental
statement of the case and given an
opportunity to respond.
4. With respect to the TDIU claim, the AMC
must provide the veteran a statement of
the case as to the claim for service
connection for TDIU. The veteran should
be informed that he must file a timely
and adequate substantive appeal in order
to perfect an appeal of this issue to
the Board. See 38 C.F.R. §§ 20.200,
20.202, and 20.302(b). If a timely
substantive appeal is not filed, the
claim should not be certified to the
Board. If a substantive appeal is filed
with respect to the claim, subject to
current appellate procedures, the claim
should be returned to the Board for
further appellate consideration, if
appropriate.
The appellant has the right to submit additional evidence and
argument on the matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims remanded by the Board of Veterans'
Appeals or by the United States Court of Appeals for Veterans
Claims for additional development or other appropriate action
be handled in an expeditious manner. See 38 U.S.C.A. §§
5109B, 7112 (West Supp. 2005).
_________________________________________________
K. Osborne
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2005).